Jan. 14, 2011 – The Senate Judiciary Committee today voted to approve with amendments an omnibus tort reform that Gov. Scott Walker and the Republican leadership in the Legislature have placed on a fast-track for passage during the ongoing special session related to job creation.

Both houses of the Legislature are expected to vote on the tort reform bill next week.

The changes approved by the Senate Judiciary Committee would maintain current law regarding the legal standard necessary to impose punitive damages, but would impose a cap of two times compensatory damages or $200,000, whichever is greater. The bill as originally introduced would have substituted a new and more stringent standard for punitive damages, which many critics said would make it more difficult to obtain punitive damages in lawsuits against drunk drivers who kill or injure others.

As amended, the bill would maintain the current standard requiring a plaintiff to show that a defendant acted maliciously or with intentional disregard of the plaintiff’s rights in order to obtain punitive damages.

The Senate amendment also makes changes to the bill’s provisions to conform Wisconsin law regarding the opinions of lay and expert witnesses to Federal Rule of Evidence 702 and the so-called Daubert standard. The amendment eliminates language – which many critics found troublesome – requiring parties to prove that such proffered evidence is “true,” but the amended bill would still impose the Daubert standard.

Finally, the Senate amendment eliminates language that would have made many of the bill’s provisions applicable to lawsuits that were filed even before the bill becomes effective. As amended, most of the bill’s relevant provisions will apply to actions commenced on or after the bill’s effective date. As currently drafted, the bill is to be effective on the first day of the second month following its publication.

The Senate committee also voted down, on a series of 3-2 votes, Democratic amendments to the bill that would have made various changes, such as striking the bill’s provisions regarding the Daubert standard.

Both the Senate and Assembly judiciary committees gave the tort reform bill a 10-hour public hearing on Tuesday, Jan. 11, 2011. Friday’s committee vote on the Senate version of the tort reform bill – Special Session Senate Bill 1 – sets the bill up for consideration by the full Senate, which is expected to occur on Tuesday, Jan. 18. If the Senate passes the bill Tuesday, it will proceed to the Assembly for a vote in that house (likely on Thursday, Jan. 20) before the final bill can be sent to Walker for his signature. A similar committee vote is scheduled for the Assembly Judiciary Committee on the morning of Tuesday, Jan. 18.

The tort reform bill incorporates numerous provisions Republicans introduced in previous sessions but did not become law. Several were vetoed by former Gov. Jim Doyle. However, with a commanding 60-38-1 majority in the Assembly and an equally commanding 19-14 lead in the Senate, this year Republicans face few if any obstacles in enacting their tort reform agenda into law.

The tort reform bill has several provisions that are opposed by the State Bar of Wisconsin’s Board of Governors. Other major components on which the Board currently has no position are currently being studied by various State Bar practice sections. However, the bill is likely to become law before any practice sections have an opportunity to finish studying the bill and provide feedback on those provisions to the Legislature.

The three provisions opposed by the State Bar’s Board would extensively rewrite state product liability law; impose caps on non-economic damages in lawsuits against various providers of long-term care such as nursing homes, hospice centers and assisted living facilities; and conform Wisconsin law regarding the opinions of lay and expert witnesses to Federal Rule of Evidence 702 and the Daubert standard.

Other provisions currently being studied by various State Bar sections include measures to legislatively reverse the Wisconsin Supreme Court’s lead paint liability decision in Thomas v. Mallett, 2005 WI 129; rewrite state rules relating to damages for frivolous claims; provide for the confidentiality of health care quality improvement reviews; and apply a three-year statute of limitations to lawsuits against long-term care providers.

The bill also includes other provisions that would effectively immunize a health care provider from criminal prosecution for death or bodily harm to a patient resulting from essentially negligent conduct.

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